The U.S. Chamber of Commerce says there's a lack of oversight for drug and medical device lawsuit advertising that must be addressed.

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It’s rare to see the Chamber of Commerce advocate in favor of more regulation, but in a new report released Tuesday, the powerful business lobby is urging the government to step in and regulate attorney advertising.

The report from the U.S. Chamber’s Institute for Legal Reform said television and internet advertisements by attorneys encouraging viewers to file lawsuits against prescription drug and medical device companies are on the rise. The Chamber called on the Federal Trade Commission and the U.S. Food and Drug Administration to label the ads “unfair or deceptive” under the FTC Act. It’s the first time the Chamber has pushed for government oversight of the ads. The group claims they harm patients by dissuading them from taking prescribed medicines and treatments.

“While the purpose of such ads may be to inform injured people of their legal rights, misleading information frightens viewers into stopping their medications and may deter others from seeking treatment,” the report said.

Currently, state bar associations have oversight over any misleading attorney advertisements, handling complaints filed in individual jurisdictions. The report said that while bar associations have rules governing some parts of attorney advertising, they don’t actively monitor the process, and that the FTC “has generally taken a hands-off approach to lawyer advertising practices” by deferring to the state bars.

The report said the FTC, along with the FDA, should adopt regulations that specifically address misleading lawsuit advertising. Ads that would fall under the category would include those that present themselves as a “medical alert” or “health alert,” display the logo of the FDA or other government agencies, indicate a product has been recalled when it hasn’t, or fail to inform the viewer of the identity of the ad’s sponsor. The report also said Congress should give the FDA authority to monitor lawsuit advertising.

The Chamber began advocating against the ads last year, and the House Judiciary Committee held a hearing in June. Committee chairman Bob Goodlatte also sent letters in March to state bar associations urging them to block attorneys from airing ads that might cause patients to stop prescribed treatments. In addition to the Chamber of Commerce, the American Medical Association, which lobbies on behalf of doctors, also advocates for greater regulation of attorney advertisements. During the June hearing, two doctors told lawmakers they had patients who stopped taking prescribed medicines after seeing the ads.

In response to Goodlatte’s inquiry, then-American Bar Association president Linda Klein said in a letter that false or misleading advertisements by lawyers are already regulated, using the same standard the AMA applies to physician advertising.

“The ABA appreciates your interest in this subject and your concern about individuals who might be harmed when discontinuing a course of medication because a consumer misunderstands a lawyer’s advertisement,” Klein wrote to Goodlatte. “We hope that you share our interest in ensuring that individuals who are injured or killed each year by taking prescribed medications, or their survivors, are able to obtain information about their legal rights and engage counsel to seek redress if supported by the law and facts in each case.”

Bob Goldwater, an Arizona-based personal injury attorney whose firm spent roughly $25 million on ads targeting Xarelto and other drugs last year, said in an email to the National Law Journal that Goodlatte and the Chamber are just trying to protect drug companies from getting sued. He said both Goodlatte and the AMA cited a study to back their claims about the harmful effects of the ads, but the study was funded by Xarelto-owner Janssen Pharmaceuticals Inc. and the lead author, Dr. Paul Burton, works for Janssen. The company is facing thousands of lawsuits over the drug.

“It is very important that people know the dangerous side effects that drugs have,” Goldwater wrote. “Oftentimes, drug companies hide or underreport the side effects of their drugs to the FDA and the general public. … Unfortunately, Goodlatte and the business lobby are much [more] concerned about protecting the multibillion-dollar drug companies from getting sued over dangerous drugs.”

The Chamber’s report, citing work by the research firm X Ante, said the number of lawsuit ads on television each year has tripled in the past decade. Between 2015 and 2017, ads recruiting clients for lawsuits against prescription drug and medical device manufacturers currently make up the largest share of lawsuit advertising, far outnumbering ads for asbestos, energy, automotive and agricultural product lawsuits, and lawsuit funding, the report said.

The report also suggested lawyers could use ads to influence jury pools. It noted that in 2016, the St. Louis area had the most attorney advertisements about potential adverse health effects from talc powder. The state courts in St. Louis are currently home to litigation against Johnson & Johnson related to claims its talc powder could cause ovarian cancer. However, the report said most plaintiffs in the talc cases live outside of Missouri.

“That raises the question: Are the TV ads in the St. Louis market ineffective in identifying clients or could the ads serve another purpose?” the report asks.

A spokesman for the American Association for Justice, the world’s largest trial bar association, said that if consumers are harmed or killed by prescription drugs or devices, patients and families should know there are legal options to hold negligent companies accountable.

“In every state, attorneys must abide by ethical conduct, including rules on lawyer advertising,” the spokesman said. “These rules are based on the American Bar Association’s Model Rules of Professional Conduct and expressly prohibit false or misleading advertising. If the relevant standards are met, attorneys have a First Amendment right to advertise their legal services just like other professionals.”

Cogan Schneier

Cogan Schneier is a Washington, D.C.-based litigation reporter covering D.C. courts, national litigation trends, the Justice Department and the federal judiciary. She is the author of Trump Watch, an email briefing that covers the Trump administration and its imprint on the law.

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